For that. Brief comments about Justice Breyer cant begin to do justice to him, so im going to have to be unjust in light of time constraints that im subject to. Justice breyer has always been remarkably generous with his time in supporting society projects. And indeed, in less than two weeks on june 6th, at our annual meeting, hell be delivering the societys 41st annual lecture. And of course, hes doing these extra projects for the society at a tremendously busy time for him and for all of his colleagues on the court. So Justice Breyer, thank you so much. Some background on Justice Breyer. He was born in san francisco. He eventually, after stanford, came east. Farther east. Hes got a ba from Magdalene College at oxford. He earned his law degree at harvard. He went on to clerk for Justice Arthur goldberg this court. He served with great distinction in the justice department. He served as chief counsel to the Senate Judiciary committee at one point and served in other similar roles during that period of his career. He has taught at harvard law school, at the Harvard Kennedy school of government, at the college of law in sydney, australia, and at the university of rome. In 1980, president carter appointed Justice Breyer to the United States court of appeals for the first circuit, and he was the chief judge there from 1990 to 1994. And then in 1994, president clinton nominated him as an associate justice of the Supreme Court to succeed justice blackman. He took his seat on august 3rd, 1994. He has also been a prolific writer, not just of judicial opinions. Many books, wonderful articles, on a very wide range of important legal subjects, both domestic and international. His most recent book, according to the world, was published last september. In a nutshell, in mew view, and im sure that you will agree with me, Justice Breyers career is powerful evidence of the enduring contributions that a single individual can make to society when he or she is blessed with a keen intellect and an innate sense of decency, a dedication to the rule of law, and a determination to make our country and our world a better place. It is my great honor and privilege to present Justice Breyer to you now. [ applause ] thats a nice introduction. Youre going to hear what you would like to hear, which is about lochner, and im very happy to be here and introduce you. Im glad youre all here. And i do want to say that the society, it does a terrifically good job. Its job is basically to tell its members and i hope most of you are members, and people who arent members, and judges in our court, and everybody else in the world something about the history of the court and something about what we do. And thats a very, very useful thing. I cannot tell you how often i talk to audiences, i love to talk to School Children particularly. I have to get them interested. I have to explain what we do. And by and large, they dont know. So thank you for what you do. You have teacher training programs. You train High School Civics teachers. You release histories like the federal courts, an essential history, and you sponsor these lectures like the leon silverman lecture. And leon used to get very long introductions to the introducer, too. I remember that. Leon was terrific, and im so glad they named this lecture series after him. This is a series called theres four parts. This is part two. Its the four parts are on the court and the progressive era. Now, tonights event is a panel discussion. The panelists are Randy Barnett and paul kens and victoria nourse. The three of you will discuss. Who are these people, as you probably know, paul kens is a professor of Political Science at texas state university. He frequently writes on subjects involving legal history, constitutional history, the history of law in the american rest. Hes written many books including lochner v. New york, economic regulation on trial. Justice steven fields, he was from california, and he had a very colorful career, shaping liberty from the gold rush to the gilded age. Thats steven field. And the Supreme Court under chief Justice Morrison r. Waite from 1874 to 1888. Randy barnett is the professor of legal theory at the Georgetown University law center. He teaches constitutional law and contracts. Hes director of the Georgetown Center for the constitution. Hes published many, many things. His most recent book is our republican constitution, securing the liberty and sovereignty of we the people. Hes also written restoring the lost constitution, the presumption of liberty and the structure of liberty, justice, and the rule of law. Now, between the two is our moderator, professor victoria nourse. Shes a professor of law at the Georgetown University law center. Shes the author of in reckless hands, skinner v. Oklahoma, and the near triumph of american eugenics and a forthcoming book, misreading law, misreading democracy. This panel is perfect to discuss this issue, so please join me in welcoming professors kens, barnett, and nourse. [ applause ] well, on behalf of the panel, thank you very much, Justice Breyer, for that wonderful introduction, and i am delighted to be here. Hopefully im one of the last moderates in washington to moderate a debate between two of the most distinguished lochner scholars in the country. If you have seen the earlier cspan performance, you will find it entrancing about the facts of the progressive era, the nature of the case, how Teddy Roosevelt made the bake shop case famous. But you wont hear much about the key legal concepts that drove the case and differ in many respects from our current constitutional law. So i hope today, having written a bit myself about lochner in the course of my book on skinner, that we will hear from these distinguished scholars something about these concepts, and they include the very notion of right, of substantive due process, the presumption of liberty, and a somewhat forgotten concept called class legislation. Im going to give the honors at first to professor kens, as we discussed on the phone earlier, for ten minutes, then professor barnett for ten minutes, then i will attempt to intervene if i get a word in edgewise, to guide the conversation on some of these interesting concepts. Over to professor kens. Thank you, victoria. And i want to thank Justice Breyer for his kind introduction, and thank the Historical Society for inviting me to participate. I appreciate the opportunity to take part in this conversation about lochner v. New york. A case that to put it mildly has not enjoyed a very good reputation. Chicago law professor david a. Strauss best captured the lochner legacy with a simple question. Who would ever cite this case in a Supreme Court brief except to identify it with your opponents position . Its safe to say that a majority of lawyers, constitutional scholars, and judges from all sides of the political and economic spectrum rank lochner along with dred scott as one of the worst decisions in constitutional history. Of course, there are some prominent and distinguished exceptions. I suspect randy will attempt to convince you that the lochner case does not deserve its reputation. I am here because i think it does. However, there are many things upon which randy and i do agree. One is that we both agree and recognize the importance of liberty in our political system and our constitutional tradition. So in the spirit of starting our conversation, i would like to focus on the meaning of liberty. Not from my own perspective but from observations of what liberty meant to most people in the 19th and early 20th centuries. Lochner is famous or infamous for Justice Peckhams use of the doctrine of liberty of contract to overturn a law limiting the hours of bakers to ten hours a day or 60 hours a week. Even though liberty of contract is not among the rights expressed in the constitution, peckham concluded that the general right to make a contract including the right to purchase and sell labor, was part of the liberty of the individual protected by the 14th amendment. It was peckhams use of liberty of contract that overturned the shorter hours law that caused Justice Holmes to criticize the majority opinion as being based on laissezfaire economic theory instead of the constitution. And it later inspired reformers like Theodore Roosevelt to charge that the court had created an insurmountable barrier to reform. The curious thing is that the lochner case actually had nothing to do with liberty of contract in any meaningful sense. In its most fundamental character, a contract is a voluntary agreement between two people. It involves some degree of meeting of the minds and dealing at arms length. Those conditions were clearly not present in employer Employee Relations in the newly industrialized economy of the turn of the 20th century. The actual target of this law that was overturned in lochner was the conditions of labors in new yorks cellar bakeries. These were typical of many of the wageearning jobs of that era. Working conditions in these bakeries were atrocious. Located in tenement basements, these bakeries were damp, dark, filthy, and they had ceilings as low as five and a half feet high. Poor ventilation caused them to be stifling hot when the ovens were on. And the bakers work involved heavy lifting, and their pay was low compared to other jobs. Its important to understand that the workers were typically paid by the day or by the week. And the number of hours that a person worked was unilaterally determined by the employer. The bakers main complaint was the number of hours they were required to work. By 1895, when the bake shop law was passed, 74 hours was typical and many bakers worked more than 100 hours a week. Why in the world would anyone in their right mind agree to work in such terrible conditions for so many hours and so little pay . The answer is that the economic circumstances gave them no choice. As one advocate of the shorter Hours Movement put it, an empty stomach can make no contract. The doctrine of liberty of contract has applied in the lochner case guaranteed little to workers. At the time, besides what might better be described as the right to indenture ones self for the day or for the week. Now, if lochner if the doctrine of liberty of contract that raises the question, if lochner was not about liberty of contract, what was it about . The answer is that it was part of a more sweeping history. That history held that the constitution implied a right to businesses and individuals to be free from government regulation. This theory was revolutionary. And it was controversial. Because it ran contrary to the traditional american views of the relationship between Property Rights and the duty of the state to regulate in the public interest. It did not originate with lochner, but lochner came to symbolize the courts acceptance of it. The right to be free from government regulation is not expressly guaranteed in the constitution. Therefore, any argument in favor of it depends on the claim that it is a dominant characteristic of our constitutional tradition. Since the 1980s, many legal historians have attempted to do just that. They have maintained that as an expression of a longstanding american tradition of limited government, reflected in jacksonian democracies distrust of government, the theory of free labor, or an aversion to class legislation. While there is some truth to these observations, a closer look at history demonstration thats when it came to regulation of business, the tradition of limited government existed more in theory than it did in practice. States routinely regulated the economy, licensing, building, and regulating public markets, controlling the quantity, quality, and the price of common goods, even the condition of employment, which was then called the law of master and servant. Are common examples of the state regulating the economy in the public interest. There may be a tradition of limited government in american theory, but the prevalence of such a wide range of regulations demonstrates that another tradition actually predominated daily life. That tradition was expressed in terms of the states duty to use its authority described as the police power, to protect the rights of the people or the rights of the community, and it was rooted in an american ideal that links liberty with popular sovereignty and democracy. In the tradition wasnt just predominant in daily life but also in constitutional doctrine. An early example is chief justi justice tawneys majority opinion. The object of all government is to promote the happiness and prosperity of the community by which it is established, he wrote, while the rights of private property are sacredly guarded. We must not forget that the Community Also had rights, and the happiness and wellbeing of every citizen depends on their faithful preservation. In 1877, chief justice wade expressed the same sentiment for the majority in munn v. Illinois. Observing that under the police power, the government regulates the conduct of its citizens one towards another and the manner in which he shall use his property when such regulation becomes necessary for the public good. Part of this tradition of the rights of the community and popular sovereignty was an understanding that private individuals and businesses can be every bit as much a threat to liberty as government. Especially when those private individuals and businesses wield Enormous Economic power. Lochners liberty of contract doctrine lasted until 1937, when it was rejected in west coast hotel v. Parish. Then writing for the majority, the chief justice returned to the old tradition that recognized the authority of the states to use their police power to balance Property Rights with the rights of the community or the public good. Use noted that a wide field of discretion to protect the health and states had a wide field of discretion to protect the health and safety of the public, but he also emphasized that the police power included promoting the peace and good order through regulations designed to insure wholesome conditions of work and freedom from oppression. The chief justice then concluded, the exploitation of a class of workers who are in an unequal bargaining position with respect to Bargaining Power and are thus defenseless against the denial of a living wage is not only detrimental to their health and wellbeing, but casts a direct burden of support on the community. I begin by observing that politicians, judges, and constitutional scholars still tend to rank lochner along with dred scott among the worst decisions in history. In my estimation, lochner deserves its reputation. Because it rejected or manipulated the common understanding of the relationship between liberty and economic regulation that was predominant in the american constitutional tradition before 1890. The constitutional tradition on which it was based existed more in theory than in practice. And it failed to recognize and appreciate the realities and actual conditions of america and the newly industrialized economy. Thank you. Now to professor barnett. Thank you, victoria. Thank you, paul. Thank you, Justice Breyer for that introduction. Thank you all for coming today. I agree with paul that we do agree about quite a bit. There is a lot, however, we disagree about. The question is how do we adjudicate such a disagreement in front of an audience. How do we establish who is right and wrong . Let me just disagree with one thing of the many things that paul just said. Let me disagree with one thing. He said lochner represented, it was part of an era in which there was supposedly a belief and a right to be free from government regulation. Thats what makes lochner so evil, because it stands for the proposition there is a right to be free from government regulation, and i can prove that this is false. That this claim that there was a belief in a right to be free of government regulation, and my evidence for this, i would rely on a case to support this proposition, and the case that i would rely on is the case of lochner v. New york. The case that were discussing today. Now, why do i say that . Because the statute that was at issue in lochner v. New york was called the bake shop act. And the bake shop act was an extensive regulation of the health and safety of the operation of bake shops. And it was passed to address the conditions the professor kens rightfully pointed out about what tenement bake shops were like. Not all bake shops were like this, but there were tenement bake shops like this. This was an extensive regulation. It includes regulated the heights of ceilings, regulated the composition of floors, regulating how often it should be whitewashed, where people could sleep relative to the ovens, regulating the wash facilities, the animals present on the premises. Cats only. You imagine why cats are allowed. Regulated ventilation. An extensive body of regulations. If you want an easy place to identify the text of the statute, you want to find the text of the statute without having to search too hard, all you have to do is read the majority opinion in lochner because they cite, they reproduce the text of the bake shop act. And the reason why i can establish that it was not this case that anyone claimed that there was a right to be free from government regulation is that no one questioned the constitutionality of the bake shop act as an exercise of police power of the state of new york. Nobody. Including the majority of the Supreme Court in the lochner case, including justice rufus peckham, who cited the opinion, cited the entire act as an example of a legitimate health and safety law. So it seems as though that since